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What's the Impact of Copyright Changes in PSE

After many years of contentious debate and numerous unsuccessful attempts to reform it, Canada’s outdated Copyright Act was overhauled in November 2012 with the enactment of Bill C-11 (aka the Copyright Modernization Act).

The new Act, in the government’s own words, is a “forward-looking and flexible” piece of legislation, designed to meet international copyright standards, be adaptable to current and future technological changes, and balance the rights of copyright creators with those of copyright consumers. For individual Canadians, the Copyright Modernization Act means they can now legally do such things as record television shows for later viewing, transfer content to portable devices, and make backup copies of their purchases. But what has changed for the educational sector with the passage of new copyright legislation? In particular, how do the changes affect the use of copyrighted works in teaching, learning and research?

Fair Dealing

While the updated Copyright Act contains some controversial provisions (read: digital locks!), there is no doubt that it also contains some significant “wins” for education. Most notable, perhaps, is the expansion of fair dealing, an exception which gives users of copyrighted works the right to make copies without obtaining permission from the copyright owner, provided the copies are made for specific purposes. Those enumerated purposes now include “education, parody and satire”. The inclusion of “education” in particular expands the scope of fair dealing to cover educational copying that may not have been allowable in the past, when “research, private study, criticism, review and news reporting” were the only purposes to which fair dealing could be applied.

But even before the passage of the Copyright Modernization Act, the fair dealing exception became more education-friendly as a result of five landmark Supreme Court rulings issued in July of 2012, now known as the copyright “pentalogy”. Together, these rulings brought clarity to the role of fair dealing in an educational context. Fair dealing was affirmed as a user’s right, to be balanced with the rights of copyright creators. Fair dealing was also deemed to be technologically neutral, meaning that it applies regardless of the format of the original work or the copies being made. Furthermore, the Supreme Court ruled that the terms “research” and “private study” should be broadly construed, and perhaps most importantly, that some copies made by instructors for their students could indeed be fair dealing.

As a result of the legislative changes and Supreme Court decisions, fair dealing has become the “go-to” exception in the Act when it comes to educational copying. While there are numerous other exceptions available to educators (discussed later in this post), in most cases there is no need to look further than fair dealing when making copies for educational purposes. The scope of fair dealing is broader, and it contains fewer limitations and restrictions than most of the other exceptions in the Act. However, it is essential that the legal requirements of fair dealing be met – in other words, just because your copying falls under one of the fair dealing purposes, does not automatically mean that it is fair.

The Supreme Court has set out a six-factor test to help determine if and when copying is likely to be fair. This test involves an assessment based on such factors as the amount being copied, the nature of the work being copied, and the effect of the copying on the market for the work. If you are interested in understanding how to apply the fair dealing criteria to your own copying, check out the online Fair Dealing Tool which will walk you through the process. Or, consult the Fair Dealing Policy for Universities, developed by the Association of Universities and Community Colleges (AUCC), which provides guidance on copying under the fair dealing exception in the university context. This policy is posted along with many other useful copyright guides and links, on the Library’s Copyright website.

According to the Fair Dealing Policy, faculty, instructors, and other university staff may make copies of a short excerpt of a copyrighted work to provide to students either as a class handout, as part of a course pack, or as a posting on a course management system such as CourseLink. Examples of a short excerpt might be a single chapter, journal article, image, poem, newspaper article, or less than 10% of a work.

Other Educational Exceptions

But what about educational uses of copyrighted works that are not enabled by fair dealing? The Copyright Modernization Act (C11) also contains a number of new and updated exceptions designed to facilitate some specific educational uses of copyrighted materials.

For example, the exception that permits copying for the purpose of displaying to students during a class has been updated so that it is technologically neutral, allowing the reproduction and display of materials in any format. Copies can also be made for use by students in tests or exams. In some cases these exceptions may permit copying beyond what is permitted under fair dealing.

A new exception permits copies of publicly available internet content to be made and communicated to students for educational purposes, provided the online material contains no statement to the contrary and is not protected by a digital lock.

It is also no longer necessary to obtain a public performance license to show films or videos in class for educational purposes, and news/news commentary programs may now be shown without the need to keep records or pay royalties.

Another new exception, known as the “mash-up” or “YouTube” exception, allows individuals to combine multiple published works in order to create new works for non-commercial purposes.

However, it is important to keep in mind that these exceptions are all subject to specific conditions. The copies must be made from non-infringing works, and must be legally obtained. In some cases, copies can only be made if no reasonable alternative is available for purchase. And, in one of the more controversial aspects of the Copyright Modernization Act, none of these exceptions, including fair dealing, permit the user to remove or disable a digital lock in order to make the copy. It remains to be seen how much this limitation may affect educational uses of digital content in the future.

Quick Guide To Copying

Whether photocopying an article, showing a film, posting a chapter online, or including an image in a PowerPoint presentation, all uses of copyrighted works on campus are subject to the terms of Canada’s Copyright Act, as well as the University’s licenses with publishers and vendors of electronic resources. Engaging in infringing activities may have serious financial implications for the University, and potentially for individuals. But fortunately, it is easier than ever to ensure that the copying you do is not infringing. Keep in mind these general principles:

Limit your copying to short excerpts, such as one chapter, one article or less than 10% of a work

Link directly to electronic journals and books that the university has already licensed

Copy materials from the Internet, provided there is no clearly visible notice prohibiting educational use, and the content is not protected by a digital lock

Copy materials for display in class, or for use in tests or exams, provided appropriate copies are not already commercially available.

Obtain permission when needed – send your request to fairdealing@uoguelph.ca, create a course pack through the University Bookstore, or submit course materials via the Ares Course Reserve system. All Ares content is copyright cleared, checked for compliance with current accessibility standards, and can be linked to via CourseLink (D2L).